Men Perish on Boat; Rare Suffering Damages Awarded Such Cases Usually Focus on Economic Support
By Tony Wright Massachusetts Lawyers Weekly April 5, 2004

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Massachusetts lawsuits brought in connection with deaths at sea usually only result in economic-support damages for family members who lose a loved one.

But plaintiffs’ attorneys in a recent maritime case were able to obtain a verdict including pain and suffering damages that topped $1 million.

Carolyn M. Latti of Boston, along with co-counsel David F. Anderson, also of Boston, said that despite the limitations placed on the type of damages a jury can award in cases governed by maritime law, she and Anderson were able to garner an approximately $1.2 million verdict for the estates of their two clients who died in a fishing boat accident in 1999.

Prior awards for similar cases in Massachusetts topped out at around $50,000 per plaintiff.

Latti said that under maritime law, the estates of those who die on the high seas are entitled to damages for conscious pain and suffering only, and family members can receive damages for economic support.

And because the defendant’s liability had previously been established, the case’s success hinged on providing the jury with an accurate and vivid depiction of a sinking boat on a rough freezing sea and the ensuing struggle for survival her clients endured before succumbing to the elements.

Key to her and Anderson’s success was expert testimony from one of the foremost experts on drowning and hypothermia, as well as moving testimony from a crewmate who survived the accident and recounted hearing one of the plaintiffs utter his last words.

And while the case raises the bar on conscious pain and suffering damages in similar cases, Anderson said that it might have limited applicability because in most cases a damage award would focus more on the economic support aspect – not conscious pain and suffering.

But because neither of the plaintiffs were married, and because only one of them had a child who didn’t live with him and to whom he gave limited financial support, putting a number on the plaintiffs’ pain and suffering became the focus of the case.

Lawyers for the defendant in the case could not be reached for comment.

Tragedy At Sea

Seasoned clammers Steve Reeves and Paul Martin were working at sea on Jan. 8, 1999.

After a successful day on the water and a boat full of clams, the pair, along with the captain of the “F/V Cape Fear,” a mate and another crewmember, began steaming back to New Bedford with their harvest.

But things quickly went wrong once the captain noticed waves from the icy waters washing up on the work deck.

The crew knew immediately that the boat was sinking and quickly began putting on survival suits. But in the blink of an eye, the boat became submerged and rolled over, sending the five men into the freezing, rough waters.

With the help of one of the ship’s mates, who used a wooden plank that came loose from the sinking vessel as a floatation device, the captain and the other mate were able to get their survival suits on and zipped up.

But the mate never saw Martin once the boat began to sink, and he was unable to reach Reeves, just a few feet away.

The mate and the captain listened as Reeves, struggling to stay afloat without his suit on completely, uttered his last words as he met his death after a 20-minute struggle.

His body was never recovered.

Martin’s body washed ashore the next morning, his survival suit zipped up only to his stomach.

The captain and the other two crew-members, all of who were able to get their survival suits on and completely zipped, survived in the water for approximately 30 minutes before being rescued.

Conscious Pain and Suffering

The estates of Reeves and Martin sued the boat’s owner in federal court.

And thanks to a previous action where U.S. District Court Judge Robert E. Keeton made a finding that the “F/V Cape Fear” was unseaworthy, the jury trial, presided over by U.S. District Court Judge George A. O’Toole Jr., focused almost entirely on damages.

“We kept saying, in a way, we had a free shot because we had already established liability,” said Latti.

The defense claimed contribution on the plaintiffs’ part, alleging one of the plaintiffs failed to close the clam hatch on the boat all the way, which may have contributed to the speed with which the vessel sank.

But Latti said that once she and Anderson proved statutory safety violations by the defendant, the burden shifted to the defense to prove that such violations couldn’t have been the cause of the plaintiffs’ injuries and deaths.

They were unable to do so, according to Anderson.

With liability set squarely on the defendant, Latti and Anderson endeavored to establish how much time each of their clients spent in the water before they perished and to place a value on their accompanying pain and suffering.

Emotional testimony from one of the survivors established the approximate amount of time Reeves spent alive in the water before he drowned.

“He talked about how he could hear Reeves four to five feet away from him yelling, ‘God save me, save me,'” recalled Latti of the man’s video testimony.

“The last part of his testimony, he put his hands into his head and didn’t say anything,” Latti added. “[He] was living testimony of how it occurred and that was our best way to tell the story.”

Because the witness heard Reeves speak his final words, he was able to estimate Reeve’s struggle in the water at 15 to 20 minutes.

But because Martin was last seen on the boat putting on his survival suit, Latti and Anderson could not rely on eyewitness testimony to determine how long he survived in the water.

Instead they looked to expert testimony from Rear Admiral Alan Steinman, whose research is used by the U.S. Coast Guard to determine search and rescue times. Steinman explained to the jury that when a person is submerged in cold water – in this case 36 degrees Fahrenheit – the body reacts involuntarily with both a cardiac and a respiratory response.

The initial “cold shock response” lasts anywhere from two to four minutes, but if the body is able to recover from the shock, the heart rate will drop off and breathing will become more regular. The defense’s contention was that Martin died during this initial shock period.

But Martin’s death certificate stated that he died from drowning and hypothermia.

Steinman testified that for hypothermia to set in, a person must be alive in the water for 30 minutes or longer.

Steinman concluded that the survival suit, albeit only on part-way, acted to insulate Martin enough to help him survive the initial shock of being in the frigid water, and also helped to keep him afloat for a longer period of time than he would have been without it. But, ultimately, it did not save his life because he never got it on completely.

Latti’s and Anderson’s contention was that the reason the two victims were unable to get their suits on in their entirety was that the defendant failed to properly maintain them by waxing the zippers regularly, as recommended by the manufacturer.

In fact, according to Latti, one of the police officers who recovered the body testified that he didn’t notice any wax on the zipper, and that he had to use a great amount of force to get the zipper to move.

Latti and Anderson convinced the judge to allow the suit into evidence, despite defense objections.

“The defense didn’t want a dead man’s survival suit in the jury room,” said Anderson.

Because proper maintenance of the zipper was at issue, and five years had passed since the accident, the defense was particularly concerned with the jury having first-hand access to it.

Judge O’Toole gave the jury a limiting instruction that the suit at trial was not the same as it would have been five years earlier.

Nonetheless, Anderson remarked, the entry of the suit into evidence helped to humanize the plaintiffs, whom the jury would never meet.

‘What’s The Pain Worth?’

Having established approximately how long the two men spent in the water before their deaths, it was up to the jury to determine an award.

The defense, according to Latti, used the benchmark of anywhere from $25,000 to $50,000, based on the highest previous award for conscious pain and suffering damages in a maritime case in Massachusetts.

But Anderson noted that this case was unique because the pain and suffering damages were the focus of the case.

“Typically you’ve got a guy with a wife and kids, [the defense] files limitations and you get liability. Then you settle based on the decedent’s contribution to the household and throw something in for conscious pain and suffering,” he added.

Anderson said he used the “neighbor test” to gauge what a jury might award.

“Lawyers are too sunk in. I talk to my neighbors and if they say, ‘They’re suing who? I think about settling. Or if they say, ‘Wow, I’d give that person a lot of money, ‘and I get that consistently, I believe it,” Anderson said.

But Anderson’s “neighbor test” on this case was met with responses “all over the place.”

However, on March 10, the jury of six men and six women – after a seven-day trial and eight hours of deliberation – returned with the largest award of its type every granted in New England.

For Reeve’s estate, the jury return a verdict of $600,000 for conscious pain and suffering, and $40,343 for loss of support for his minor child.

For Martin’s estate, the jury came back with $200,000 for conscious pain and suffering, and $8,000 for funeral expenses.

The total award, with interest, exceeds $1 million.

Latti and Anderson attributed the disparity between the two awards to having eyewitness testimony in Reeves’ case, but only expert testimony in Martin.

Nonetheless, the case has raised the bar substantially for conscious pain and suffering damages for plaintiffs who perish on the high seas.